“The fact that the ICC has focused so overwhelmingly on African situations prompts questions about why the gaze of international criminal justice falls in some places and on some people and not on others. The Court’s focus on Africa has stirred African sensitivities about sovereignty and self-determination – not least because of the continent’s history of colonisation and a pattern of decisions made for Africa by outsiders,” say Nicholas Waddell and Phil Clark in their seminal work, Courting Conflicts? – Justice, Peace and the ICC in Africa, So far, the Court has indicted 27 Africans from seven countries. Why? What lies behind the focus on Africa?
It was Alexander Murdoch Mackay, the Scottish Presbyterian missionary to Uganda, who observed in 1889: “In former years, the universal aim was to steal Africans from Africa. Today the determination of Europe is to steal Africa from the Africans.” A hundred and twenty-three years later, Europe appears to still be trying to steal both Africa and the Africans. They are now using their new creation, the International Criminal Court (ICC), to steal Africans from Africa to put on show-trials in Western Europe.
This has been seen as a means of destabilising the African continent – something which then makes the political domination of Africa and the subsequent exploitation of African minerals and resources that much easier. As the African Union has put it: “The abuse and misuse of indictments against African leaders have a destabilising effect that will negatively impact on political, social and economic development of member states and their ability to conduct international relations…”
The ICC’s actions have provoked furious debates over the Court’s potential impact, its exclusive focus on Africa over other parts of the world, its selection of cases, and the effect of its indictments and prosecutions on peace processes on the African continent. Over-zealous evangelism has been caught up in double standards, hypocrisy, racial stereotyping, and national and personal agendas.
Judge Richard Goldstone (the ICC enthusiast from South Africa), has highlighted the political nature of the international criminal tribunals that preceded the ICC: “The problem with the UN Security Council is that it says no in the case of Cambodia, Mozambique, Iraq and other places where terrible war crimes have been committed, but yes in the case of Yugoslavia and Rwanda. That’s a political way of deciding where international justice should be meted out. There has long been a concern that these tribunals ‘politicise justice’… It is noteworthy that no ad hoc tribunals were established to investigate war crimes committed by any of the five permanent members of the UN Security Council or those nations these powerful states might wish to protect.”
Prof Mahmood Mamdani, the influential Ugandan academic, agrees: “The fact of mutual accommodation between the world’s only superpower and an international institution struggling to get its bearings is clear if we take into account the four countries whereby [by 2009] the ICC had launched its investigations: Sudan, Central African Republic, Uganda and DRCongo. All…are places where the US has no objection to the course charted by the ICC investigations.
“In Uganda, the ICC has charged only the leadership of the [rebel group] LRA but not that of the pro-US government [headed by President Museveni]. In Sudan, the ICC has charged officials of the Sudan government. In DRCongo, the ICC has remained mum about the links between the armies of Uganda and Rwanda – both pro-US – and the ethnic militias that have been at the heart of the slaughter of civilians.
Mamdani notes further that: “The ICC’s attempted accommodation with the powers that be has changed the international face of the Court. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. Even then, its approach is selective: it targets governments that are adversaries of the US and ignores US allies, effectively conferring impunity on them.”
In their well-argued paper, “The Impact of Timing of International Criminal Indictments on Peace Processes and Humanitarian Action”, Jacqueline Geis and Alex Mundt noted that “although the ICC was established as an impartial arbiter of international justice, both the timing and nature of its indictments issued to date suggest that the intervention of the ICC in situations of ongoing conflict is influenced by broader external factors.”
“Broader external factors” bring into sharp focus the indictment by the ICC of the ex-Libyan leader, Muammar Al Gathafi, during last year’s NATO war in Libya. Gathafi’s indictment contrasts starkly with the ICC’s silence on the presidents of Syria and Yemen, and the King of Bahrain where similar “war crimes” and “crimes against humanity” as alleged by the ICC to have occurred in Libya under Gathafi have happened over the past year. But Gathafi, then being bombed and wanted by the Western powers, was indicted by the ICC, while, to date, the Syrian President Bashar al-Assad, the Yemeni President Ali Abdullah Saleh, and the King of Bahrain Hamad ibn Isa Al Khalifa have been left in peace.
Another example is the ICC actions in Sudan regarding the Darfur situation, which have been particularly controversial not least because Sudan, as a non-signatory of the Rome Statute, does not come under the ICC’s jurisdiction. In so doing, the ICC has polarised international opinion on the Court.
Unfortunately for the ICC and Europe, they are targeting Africa at a time when the continent is asserting its political and economic independence. As a result, Africa has rejected European and ICC attempts at regime change by deeply questionable legal diktat. Broadly, the ICC has emerged as a de facto European court, funded by Europe, directed by Europe, and focused almost exclusively on the African continent, and thereby serving Western political and economic interests in Africa.
Geis and Mundt have noted how the ICC’s Africa focus is fragmenting international opinion: “The broad international consensus in favour of the Rome Statute has begun to fray as the Court pursued justice in some of the world’s most politically charged and complex crises, all of which happened to fall within Africa. At the same time, other states such as Burma and North Korea have so far eluded potential ICC investigations, most likely for geopolitical reasons and/or deference to regional interests. Other commentators alleged that the prosecutor has limited investigations to Africa because of geopolitical pressures, either out of a desire to avoid confrontation with major powers or as a tool of Western foreign policy.”
This reality has been picked up by the Rwandan president, Paul Kagame. He has dismissed the ICC as a new form of imperialism created by the West and “put in place only for African countries, only for poor countries”. He said that the ICC reflected “colonialism, slavery and imperialism”.
The distinguished international peace researcher and a past senior vice rector of the United Nations University, Prof Ramesh Thakur, reflects this growing consensus within the developing world: “A troubling issue is how an initiative of international criminal justice meant to protect vulnerable people from brutal national rulers has managed to be subverted into an instrument of power against vulnerable countries. A court meant to embody and pursue universal justice is in practice reduced to imposing selective justice of the West against the rest.”
The Rome Statute provides that individuals or organisations may submit information on crimes within the jurisdiction of the ICC. These submissions are referred to as “communications” or complaints. By February 2006, the ICC prosecutor had received 1,732 communications alleging crimes worldwide. As of 4 October 2007, the Office of the Prosecutor had received 2,889 communications about alleged crimes in at least 139 countries. As of 1 February 2006, 60% of the communications had originated in just four countries: the USA, UK, France and Germany.
As of July 2009, the prosecutor reported that his office had “received over 8,137 communications from more than 130 countries”. Yet, despite all these complaints, the ICC has started investigations into just 7 countries, all of them African: Uganda, DRCongo, Central African Republic, Sudan, Kenya, Guinea, Côte d’Ivoire, Libya; and has indicted 27 people, all of them again Africans. Die-hard supporters of the ICC have tried to explain the ICC focus away. When asked in 2005 about the fact that the ICC’s only referrals up to then had been African, Judge Goldstone replied that “it is a coincidence that the first four cases have come from Africa”.
When pressed on the fact that all his cases and investigations have been in Africa and nowhere else, Moreno-Ocampo has always defended this narrow focus by claiming that they were all “self-referrals” by the African countries themselves, or in the case of Sudan, by the UN Security Council. Ocampo claims that he is merely responding to spontaneous referrals from African state members of the ICC. “Why focus on cases in Africa? Because… the leaders requested our intervention,” he says.
But this is a deceit! The ICC brought considerable pressure to bear on both Uganda and DRCongo to refer themselves to the Court. On 17 July 2003, Ocampo announced that he had analysed the 500 complaints the ICC had then received since the Rome Statute had entered into force. Of all the complaints, he chose to “follow closely” the situation in DRCongo. On 3 September 2008, the US Congressional Research Service confirmed that: “According to an Office of Prosecutor official, referrals by the governments of Uganda and DRC followed moves by the Office of the Prosecutor to open investigations under its discretionary power”. Human Rights Watch baldly confirmed that “the Office of the Prosecutor actively sought the referrals in the DRC and Uganda”.
On 17 July 2008, Ocampo himself admitted that he had invited Uganda and DRCongoto refer their situations to the ICC. As the Inner City Press subsequently noted: “After this admission, to argue that Moreno-Ocampo is only responding to requests is no longer tenable.”
The truth is that Ocampo made it very clear to both DRCongo and Uganda that he had been “closely analysing the situation in the DRC since July 2003. In September 2003, Ocampo informed the states parties that he was ready to request authorisation from the Pre-Trial Chamber to use his own powers to start an investigation, but that a referral and active support from the DRC would assist his work”. In autumn 2003, Ocampo said he was ready to act but pointed out that he preferred to wait for the Congolese government to ask him to intervene.
The American Non-Governmental Organisations Coalition for the ICC confirms that “in July 2003, Prosecutor Ocampo identified Uganda as an area of concern.” In December 2003, the Ugandan president, Yoweri Museveni, was forced to “refer” the situation in his country to the ICC. Under similar pressure, DRCongo “welcomed” the ICC involvement, and in March 2004, the Congolese government “referred” the situation in the country to the Court.
The ICC action in Uganda has been criticised for three main reasons: Selectivity and bias on the part of the ICC and its prosecutor; severely damaging the peace process in the country; and trying to impose a retributive European model of justice on Africans.
It is a matter of record that President Museveni may have had second thoughts about the referral. Even before the warrants were issued, he asked the ICC to drop the charges. The government subsequently stated that traditional justice would be a more effective tool for dealing with the rebel group, the Lord’s Resistance Army (LRA) and its crimes.
The Western response was immediate – arrogant. The London-based Amnesty International declared this could not be done. A conference in the USA, chaired by Judge Goldstone, stated: “The Ugandan government may believe it can simply retract the referral and nullify the work of the ICC, if the UPDF [the Ugandan army] is implicated. It is not clear that the government understands that once an investigation is launched, it can only be delayed by the UN, it cannot be revoked.” The American legal expert, Prof Tom Ginsburg, has clearly stated the case: “A government that wants to make a decision to forgive cannot do so, once it has signed the Rome Statute.” The lesson therefore is a clear one for any government considering referring a situation to the ICC. However cosy the arrangement may have been at the start, however much the prosecutor may have wooed the government in question for a referral, once in play it has its own life.
Compare and contrast
In contrast to the ICC action in Africa, the Office of the ICC Prosecutor reported in February 2006 that it had received 240 communications in connection with the invasion of Iraq in March 2003, which alleged that various war crimes had been committed. Many of these complaints concerned the British participation in the invasion, as well as alleged responsibility for torture deaths whilst in detention in British-controlled areas.
On 9 February 2006, Ocampo published his response to all those who raised the issue of Iraq, which included the allegations in respect of the targeting of civilians or clearly excessive attacks; wilful killing or inhuman treatment of civilians. Ocampo stated that there was insufficient evidence for proceeding with an investigation in connection with the targeting of civilians or clearly excessive attacks.
He concluded that the situation in Iraq did not appear to meet the “gravity” threshold necessary to initiate any such investigations, and that there was a reasonable basis for believing that there had been an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totalling in all less than 20 persons.
Even Alan Dershowitz, the conservative American lawyer, jurist, and political commentator, has stated that the armed forces of the US and the UK have “caused the deaths of thousands of civilians in Iraq and Afghanistan”. He prefaces that acknowledgement with “inadvertently”, but Ocampo has ignored all of these deaths.
The ICC has also turned a blind eye to a range of crimes that would seem to fall within its legal mandate committed by Western security companies in Iraq. These included a September 2007 shooting incident in Nisour Square in Baghdad in which the Iraqi government said contractors from [a US security company] killed 17 Iraqi civilians and wounded more than 20 others.
The ICC also continues to ignore the situation in Iraq, as it does eventsin Afghanistan and Gaza and the Occupied Territories in Palestine. It is perhaps worth mentioning that Afghanistan is a member of the ICC.
In 2008, the UN reported that US, NATO and Afghan forces were responsible for over 828 civilian deaths in Afghanistan. Most of these were the result of US and NATO air strikes. In effect, the death of more than 90 Afghan civilians, and the injury to dozens more, in a military air strike (one of many such air strikes resulting in civilian fatalities) are ignored by the ICC. Yet, the death of 57-157 protestors during a demonstration in Conakry, Guinea, is the subject of an official ICC investigation.
Human Rights Watch has also confirmed that the ICC’s impartiality has come into question in Uganda: “The ICC badly needs to regain the confidence and trust of the people whose interests it is pursuing. It must correct the image it has acquired of an institution subject to manipulation by the Ugandan government for political expediency. It must restore the image of a credible international institution.”
In Africa generally, the ICC and its prosecutor have been extraordinarily selective and partisan. They have chosen cases which they knew would not antagonise the US. They have also clearly avoided cases which would embarrass the governments in whose countries the ICC was physically present and active.
It is a matter of record that the International Court of Justice (ICJ), the world’s only credible international legal institution, has itself pointed conclusively to Ugandan government involvement in war crimes and crimes against humanity committed on Congolese territory. In a 2005 landmark case, the ICJ adjudicated on claims by DRCongo that its neighbour Uganda had invaded Congolese territory, plundering its natural resources and massacring its civilians.
The ICJ held that both international humanitarian law and human rights obligations were binding on the Ugandan troops then occupying DRCongo, and that the Ugandan government was liable under the doctrine of responsibility for those acts. Those crimes were unambiguously documented by the ICJ, and having occurred in large part after the establishment of the ICC thus came within the ICC’s brief. It was the sort of case that the ICC had been created for: bringing to justice an otherwise unaccountable head-of-state and government engaging in the most serious of crimes.
Yet, despite the ICJ’s detailed listing of serious war crimes, the ICC chose instead to indict Thomas Lubanga for allegedly using child soldiers in DRCongo. And, of course, similarly, the ICC has not indicted any Ugandan officer or official for involvement in the large-scale crimes against humanity for which they have been responsible within Uganda itself – choosing to charge only Ugandan rebels. It would be difficult to imagine clearer examples of the Ugandan government being accorded “exemption or freedom from punishment” by the ICC.
The Court has similarly turned a blind eye to alleged crimes against humanity committed by the Congolese government inside Congo itself, thus according impunity to the government in Kinshasa.
There is no doubt that the ICC has deliberately sought out Africa. This is quite simply because the Western European states and NGOs at the heart of the ICC see the continent as a “free-fire zone” in which to experiment with a questionable European legal model, established by a flawed statute.